Eight new grants, Ginsburg recovery from surgery “on track”

January 11, 2019 at 5:32 PM

One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg would not require any further treatment. Ginsburg’s recovery from surgery is “on track,” Supreme Court spokeswoman Kathleen Arberg said in a statement, although the justice will miss next week’s oral argument, participating in the cases by reading the briefs and transcripts of oral arguments, as she did this week.

Meanwhile, the justices issued orders from their private conference today, adding eight new cases to their merits docket. The issues in the cases included everything from the constitutionality of a Wisconsin law that allows law enforcement to draw blood from an unconscious motorist to when the statute of limitations begins to run for federal civil rights claims based on the fabrication of evidence in criminal proceedings. The list of grants did not, however, include some of the high-profile cases that the justices considered this morning, involving issues such as abortion, gun rights, the Trump administration’s decision to end the “Deferred Action for Childhood Arrivals” program, the ban on transgender servicemembers in the military and whether federal employment discrimination laws protect LGBTQ employees.

In Rehaif v. United States, the justices agreed to decide whether, when the government prosecutes a noncitizen who is in the United States illegally for violating a federal law prohibiting him from having guns or ammunition, the government must show that the defendant knew he was in the country illegally, or whether it is enough to show that the defendant knew he had the guns or ammunition.

The question arose in the case of Hamid Mohamed Ahmed Ali Rehaif, a citizen of the United Arab Emirates, who came to the United States on a student visa but was dismissed from school – and, as a result, was no longer in the country legally. Several months later, Rehaif was arrested and charged with having ammunition in his hotel room; he was convicted and sentenced to 18 months in prison. The U.S. Court of Appeals for the 11th Circuit upheld Rehaif’s sentence, rejecting his argument that he could only be convicted if he knew that he was in the country illegally.

In Mitchell v. Wisconsin, the justices will rule on the constitutionality of a state law allowing law-enforcement officials to draw blood from unconscious drivers without a warrant. The petitioner in the case, Gerald Mitchell, was arrested for driving while intoxicated. A preliminary breath test indicated that Mitchell had a blood-alcohol concentration of 0.24; when police took Mitchell to the hospital because he had passed out, a blood test revealed a blood-alcohol concentration of 0.222.

When Mitchell went to court, he argued that the blood-test results should not be admitted because police had not gotten a warrant before drawing the blood – a violation, he said, of the Fourth Amendment. After the Wisconsin Supreme Court upheld the blood test, Mitchell asked the U.S. Supreme Court to weigh in. The fact that Wisconsin law authorized the blood test, on the theory that Mitchell had consented to the test by getting behind the wheel, does not make the law constitutional, he contended.

McDonough v. Smith is the first of two granted cases today filed by former acting solicitor general Neal Katyal. The question in McDonough is when the statute of limitations begins to run for a federal civil rights claims alleging that prosecutors fabricated evidence in a criminal proceeding – when the defendant is cleared of wrongdoing, or when he should have known that the evidence was fabricated? The question arises in the case of Edward McDonough, a former election official in New York, who was indicted on 74 felony counts alleging that he had been involved in the forgery of absentee-ballot applications and absentee ballots. McDonough was acquitted in 2012 and filed a lawsuit less than three years later. But a federal trial court concluded that his lawsuit came too late, because the statute of limitations for his fabrication-of-evidence claim begin to run long before he was acquitted, when he knew or should have known that the evidence was manufactured. A federal appeals court upheld that ruling, and today the Supreme Court agreed to weigh in.

Fort Bend County v. Davis is Katyal’s second grant today. Before filing a lawsuit under Title VII of the Civil Rights Act of 1964, an employee who alleges that she has been the victim of employment discrimination must first go to the federal Equal Employment Opportunity Commission. The question that the justices agreed to review today is whether federal courts have the power to review Title VII claims if the employee did not file a charge with the EEOC, or whether Title VII’s requirement that a plaintiff go to the EEOC first is instead what is known as a “claim-processing rule” – a rule requiring someone to take specific steps, often to promote order – that can be waived or forfeited.

In Food Marketing Institute v. Argus Leader Media, the justices will consider the meaning of the term “confidential” in the Freedom of Information Act, which protects from disclosure all “confidential” private-sector “commercial or financial information” in the government’s possession, In particular, the justices will decide whether the government should withhold any commercial or financial information that is not publicly disseminated, or whether the entity opposing disclosure of information must show that the disclosure would likely cause substantial competitive harm.

The case arose when a South Dakota newspaper, the Argus Leader, tried to get data about the federal food stamp program. The U.S. Department of Agriculture, which runs the program, refused to turn over data about food stamp sales at specific stores, but the district court ordered it to release the data, concluding that any harm to the stores was “speculative at best.” The Food Marketing Institute entered the case to appeal that ruling after USDA declined to do so, and the U.S. Court of Appeals for the 8th Circuit affirmed.

In another of today’s grants, Quarles v. United States, the justices will decide a case involving the timing of the intent required to commit burglary for purposes of a “violent felony” under Armed Career Criminal Act: Do prosecutors need to prove that the defendant intended to commit a crime when he first entered the building where the burglary occurred, or is it enough that the defendant decided to commit the burglary at some point while he was in the building?

And in North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the justices will decide whether the Constitution’s due process clause bars a state from taxing trusts when beneficiaries of the trust are in-state residents. Urging the Supreme Court to take the case, the state stressed that over “$120 billion of our nation’s income flows through trusts,” making them a “vital source of tax revenue for the states.”

More orders from today’s conference are expected on Monday, January 14, at 9:30 a.m. The justices will meet again for their next conference on Friday, January 18, and could add more cases to their merits docket that day. After that, the justices’ next regularly scheduled conference is not until Friday, February 15.

[Disclosure: The law firm of Vinson & Elkins, LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Quarles and is also among the counsel on an amicus brief in support of the petitioner in Food Marketing Institute and Parker Drilling, but the author of this post is not affiliated with the firm.]